Jenkins, George v. Huntley, Edward W.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 23, 2007*

Decided May 23, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 06-3622

GEORGE JENKINS, JR., Appeal from the United States District

Plaintiff-Appellant, Court for the Northern District of

Illinois, Eastern Division

v.

No. 06 C 3657

EDWARD W. HUNTLEY and

ROGER E. WALKER, JR., Virginia M. Kendall,

Defendants-Appellees. Judge.

ORDER

George Jenkins brought suit under 42 U.S.C. § 1983 claiming that the

Director and the Chief Legal Counsel of the Illinois Department of Corrections

violated his First Amendment rights by allowing prison employees to open, outside

*

The appellees notified this court that they were never served with process in

the district court and would not be filing a brief or otherwise participating in this

appeal. After examining the appellant’s brief and the record, we have concluded

that oral argument is unnecessary. Thus, the appeal is submitted on the

appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).

No. 06-3622 Page 2

his presence, correspondence that he characterizes as “legal mail.” The district

court dismissed the complaint prior to service, and Jenkins appeals. We affirm.

The following account is taken from the amended complaint and its

attachments. See Witzke v. Femal, 376 F.3d 744, 749 (7th Cir. 2004). While he was

incarcerated, Jenkins brought a § 1983 claim against prison officials that was

settled for $500. In the months after the settlement was reached, Jenkins wrote a

series of letters to the Cook County State’s Attorney’s Office inquiring when he

would receive his check. Jenkins intentionally misrepresented this outgoing

correspondence as legal mail because he had a negative balance in his inmate trust

account and could get free postage for legal mail. The responding letters from the

State’s Attorney’s Office were not marked “privileged,” and therefore prison officials

opened them outside Jenkins’s presence to search for contraband. Prison officials

also opened a letter to Jenkins from the Attorney Registration and Disciplinary

Commission, which declined Jenkins’s request for an investigation of an Assistant

State’s Attorney for failing to issue his settlement check promptly. Jenkins says he

was harmed when this incoming “legal mail” was opened because prison officials

“prematurely” learned about the settlement check and, when it was received,

applied the money toward his negative account balance rather than allowing him to

take it with him upon his release from prison.

Jenkins was out of prison when he filed his complaint, but the district court

still reviewed it prior to service because Jenkins sought leave to proceed in forma

pauperis. See Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999). The district court

concluded that the incoming correspondence was not privileged under valid IDOC

regulations and thus could be inspected outside Jenkins’s presence. In any event,

the court reasoned that Jenkins had no standing to seek prospective relief because

he was no longer incarcerated, and he could not recover damages because the

defendants enjoyed qualified immunity. Accordingly, the court dismissed the

complaint under 28 U.S.C. § 1915(e)(2)(B).

On appeal Jenkins argues that the district court erred by failing to adopt the

reasoning of a Sixth Circuit case, Muhammad v. Pitcher, 35 F.3d 1081, 1084-86 (6th

Cir. 1994), which held unconstitutional a Michigan Department of Corrections

policy that treated incoming correspondence from the State Attorney General’s

Office as ordinary mail rather than legal mail. Jenkins urges us to reverse the

district court’s judgment because, in his view, the IDOC policy “effectively chills

access to the courts or a governmental entity.”

Although prisoners have a First Amendment right to send and receive mail,

it is well established that prison officials may inspect mail for contraband. Wolff v.

McDonnell, 418 U.S. 539, 575-77 (1974); Rowe, 196 F.3d at 782. Legal mail is

afforded greater protection because of the potential for interfering with a prisoner’s

No. 06-3622 Page 3

access to the courts, and thus prison officials risk violating an inmate’s

constitutional rights if they open, without him being present, an incoming letter

“that is marked with an attorney’s name and a warning that the letter is legal

mail.” Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005). Regulations

applicable to all IDOC facilities extend protection, not just to “legal mail,” but to 11

different categories of “incoming privileged mail,” of which legal mail is just one.

Ill. Admin. Code tit. 20, § 525.110(f). But for incoming mail to be treated as

privileged, it must be clearly marked as “privileged,” id. § 525.140(a), and it still

may be opened in the recipient’s presence to inspect for contraband, verify the

identify of the sender, and determine that it contains only legal or official materials,

id. § 525.140(b). And we have held that there is no constitutional impediment

created by prison regulations requiring that mail from attorneys be identified as

privileged in order to receive special treatment. Martin v. Brewer, 830 F.2d 76, 77-

78 (7th Cir. 1987).

The district court apparently concluded that mail from a State’s Attorney’s

Office needs no special protection, but we don’t have to decide that question in order

to conclude that Jenkins’s complaint fails to state a claim. Mail from a State’s

Attorney’s Office, although not defined in the IDOC regulations as “legal mail,” Ill.

Admin. Code tit. 20, § 525.110(h)(1), is among the classes of “privileged” mail

entitled to exactly the same protection as legal mail, id. § 525.110(f)(3). Like any

privileged mail, however, the sender must identify it as such, yet none of the

envelopes from the State’s Attorney’s Office were labeled as “privileged.” Prison

employees were thus free to open and inspect them outside Jenkins’s presence. See

id. § 525.140(a), (d). As for the correspondence from the Attorney Registration and

Disciplinary Commission, the regulations neither define such mail as legal or

privileged. See id. § 525.110(f), (h). The mere fact that a letter comes from a legal

organization does not require prison officials to treat it as privileged, particularly

when the inmate is neither represented nor seeking to be represented by one of the

organization’s attorneys. See Kaufman, 419 F.3d at 686. And, indeed, the ARDC

letter contained no privileged information; it simply declined Jenkins’s request that

it investigate an Assistant State’s Attorney over an alleged delay in issuing his

settlement check.

There may be some disagreement among the circuits concerning the scope of

the definition of legal mail, see Sallier v. Brooks, 343 F.3d 868, 876-77 (6th Cir.

2003), but there is no dispute concerning the constitutionality of regulations

requiring that prison mail from attorneys be labeled in order to receive special

treatment, see e.g., Wolff, 418 U.S. at 576-77; Boswell v. Mayer, 169 F.3d 384, 388-

89 (6th Cir. 1999); Henthorn v. Swinson, 955 F.2d 351, 352-54 (5th Cir. 1992);

Martin, 830 F.2d at 77-78; Harrod v. Halford, 773 F.2d 234, 235-36 (8th Cir. 1985).

Jenkins’s reliance on the Sixth Circuit’s decision in Muhammad is misplaced

because, unlike the Michigan DOC regulations at issue in that case, the IDOC

No. 06-3622 Page 4

regulations provide heightened protection to properly labeled privileged mail. See

Muhammad, 35 F.3d at 1082. Jenkins could not avail himself of that protection,

either because he neglected to ask the State’s Attorney’s Office to label its

correspondence as privileged, or because the sender did not think the

correspondence was privileged. By annexing copies of the unlabeled envelopes to

his amended complaint, Jenkins has pleaded himself out of court.

AFFIRMED.